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An International Copyright Proposal for the United States

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An International Copyright Proposal for the United States NATION, DURATION, VIOLATION, HARMONIZATION: AN INTERNATIONAL COPYRIGHT PROPOSAL FOR THE UNITED STATES DAVID NIMMER* I INTRODUCTION For most of its two centuries, the United States has been a copyright island, its jurisprudence having evolved in isolation from developments elsewhere. As long as it served American interests, U.S. copyright law did not concern itself with the waves that our statutes or rulings would set in motion outside our borders, and few ripples from abroad affected U.S. copyrights. In 1955, however, the international tide began to lap against U.S. copyright shores. In 1976, Congress acknowledged what had by then become the crash of foreign waves, amending parts of the Copyright Act to reflect international standards. Finally, in 1989, the floodgates opened to a massive effort to bring the United States into the world copyright fold and to amend U.S. law for compatibility with that purpose. Fully three years after this 1989 effort, the integration is still not complete, however. Certain backwaters exist in U.S. copyright law, as yet untouched by the standards observed throughout the rest of the world. And a perilous undertow threatens the subsistence of copyrights in various U.S. works abroad and various foreign works inside the United States. This article addresses those lingering anomalies. The structure of this article is as follows: Part II summarizes the historical background during which the United States progressed from a copyright piracy haven to the foremost exporter of intellectual property. Part III begins the discussion of copyright duration, which is the focus of the article, and compares the durational schemes provided under U.S. law and the Berne Convention. Part IV discusses conflicts between those schemes, which give rise to the argument that the United States is in violation of its treaty obligations. Part V offers a legislative proposal concerning U.S. copyright Copyright © 1992 by David Nimmer * Of counsel, Irell & Manella, Los Angeles, California. Portions of the introductory material set forth below has previously appeared in Melville Nimmer & David Nimmer, Nimmer on Copyright (Bender, 1991) ("Nimmer on Copyright"). LAW AND CONTEMPORARY PROBLEMS [Vol. 55: No. 2 duration to alleviate potential treaty violations with minimal disruption to exiting interests. II THE SETrING: OUR NATION A. Before Adherence to the Berne Convention Like certain far-eastern locales about which American artists and publishers indignantly complain today,' the United States was a copyright piracy haven from the first copyright statute of 1790 until the Chace Act of 1891.2 During that century, foreigners were utterly without rights under U.S. copyright law, and U.S. publishers busied themselves bootlegging the works of Dickens, Trollope, and Hugo, three authors noted for their role in spearheading international copyright protection, particularly in response to 3 the egregious U.S. example. The International Copyright Act of 1891, 4 more commonly known as the Chace Act, grudgingly began the process of according some protection to foreigners. Although this Act was passed only several years after the formation of the world's oldest and foremost multilateral copyright treaty- the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland on September 9, 1886 ("Berne Convention")-the United States nonetheless declined to ratify the Berne Convention. 5 At that time, simple economics dictated the lack of U.S. protection for foreigners-the United States did not wish to pay for the use of works by non-American authors, as no reciprocal revenue could be expected to flow back to American authors from the use of their works abroad. "In the four quarters of the globe, who reads an American book?" ran a "famous exclamation" of 1820, 1. A decade ago, the most problematic countries were Hong Kong, Singapore and South Korea, all of which have since capitulated to Western pressure and enacted internal copyright protection. Today, the focus has shifted even further. For example, see United States Trade Representative, 1991 National Trade Estimate Report on Foreign Trade Barriers (US Govt Printing Office, 1991) ("1991 National Trade Estimate Report") (general problems with copyright enforcement in Brazil at 23, Egypt at 62, Gulf Cooperation Council states at 98, India at 104, Nigeria at 170, Pakistan at 179, and Philippines at 185; with video cassette piracy in Greece and Italy at 94 and 119; with unauthorized retransmission in Israel at 118; with software piracy in Germany at 81, Italy at 118, and Turkey at 221); Charles Wallace, The FrustratingCampaign to Stop Thai Drug Copying, LA Times DI col 5 (Dec 3, 1990) ("Thailand is infamous as a source of counterfeit goods ranging from fake watches to pirated audiotapes and videotapes selling for as little as $1 each .... Jack Valenti, chairman of the Motion Picture Export Assn. of America, called the country 'the worst offender of intellectual property rights in Asia.' "). 2. Hamish Sandison, The Berne Convention and the Universal Copyright Convention: The American Experience, 11 Colum-VLAJ L & Arts 89, 91 (1986). 3. See generally Sam Ricketson, The Birth of the Berne Union, 11 Colum-VLA J L & Arts 9 (1986); Sandison, 11 Colum-VLA J L & Arts 89 (cited in note 2). 4. ch 565, 26 Stat 1106. 5. Actually, the United States (along with Japan) participated as an observer at the initial 1886 conference in Berne. The U.S. delegate obliquely indicated that American participation would be forthcoming. See Ricketson, 11 Colum-VLAJ L & Arts at 29-30 (cited in note 3) ("The position and attitude of the United States is one of expectancy and reserve."). Page 211: Spring 1992] INTERNATIONAL COPYRIGHT PROPOSAL which Justice Holmes quoted apropos of the lack of revenue to this nation 6 from the export of its intellectual property. As authorized by the Chace Act, the United States began to conclude bilateral agreements with various nations starting in 1891, 7 a process that continued through the 1950s. s The Chace Act provided that, so long as they complied with U.S. notice, registration, and deposit requirements, as well as the manufacturing clause that the Chace Act introduced into U.S. copyright law, foreigners whose nations provided reciprocal protection to U.S. nationals could obtain U.S. copyrights for their works. The manufacturing clause proved to be the fly in the ointment, however; under its terms, a "book, photograph, chromo, or lithograph" was eligible for U.S. copyright protection only if "printed from type set within the limits of the United States," or "from negatives or drawings on stone made within the limits of the United States." 9 Given that onerous requirement, the Chace Act hardly opened the floodgates to copyright protection for foreigners. In fact, as former Register of Copyrights Barbara Ringer commented, the Chace Act's manufacturing clause strictures "made the extension of copyright protection to foreigners illusory."' 0 This series of draconian formalities continued past the Chace Act into the general revision of U.S. copyright laws that was passed in 1909."1 That statute, which governed until its revision in 1976, set U.S. law irreconcilably at odds with the anti-formal tenor of copyright developments throughout much 2 of the rest of the world, and in particular throughout the Berne Union.' Given the Berne Convention's recognition of copyright protection even absent compliance with formalities, U.S. reliance on formalities as a condition 6. United Dictionary Co. v Merriam Co., 208 US 260, 264 (1908). 7. For instance, in 1891, the United States concluded bilateral copyright treaties with France, Switzerland, the United Kingdom, and Belgium; in 1893 with Denmark; in 1896 with Mexico and Chile; in 1892 with Germany and Italy. A complete listing of the copyright relations of the United States is set forth in Melville Nimmer & David Nimmer, 4 Nimmer on Copyright App 20 (Bender, 1991) ("Nimmer 4"). 8. See Bilateral agreement of April 2, 1957 between the United States and Brazil, [1957] 8 UST 418 (1957). 9. Revised Statutes § 4956, as amended by section 3 of the Act of March 3, 1891, ch 595, 26 Stat 1107. See generally Melville Nimmer & David Nimmer, 2 Nimmer on Copyright §§ 7.22-7.23 at 7- 208 (Bender, 1991) ("Nimmer 2"). 10. Barbara Ringer, The Role of the United States in International Copyright-Past,Present and Future, 56 Georgetown LJ 1050, 1057 (1968). 11. Act of March 4, 1909, 35 Stat 1075. 12. One of the primary accomplishments of the Berne Convention in 1886 that persists until this day is the formation of all the constituent states into the Berne Union, an undertaking as political as it is legal. Berne Convention Implementation Act of 1988, HR Rep No 100-609, 100th Cong, 2d Sess 12 (1988). This political unit is constituted at the very outset of the Convention. See Berne Convention (Paris text), art 1, WIPO Guide to the Berne Convention (World Intellectual Property Organization, 1978). The World Intellectual Property Organization in Geneva, Switzerland, acts as secretariat of the Berne Convention. See generally Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 146 (Centre for Commercial Law Studies, Queen Mary College, 1987) ("Berne Convention Protection"). LAW AND CONTEMPORARY PROBLEMS [Vol. 55: No. 2 to copyright subsistence precluded its participation in the world copyright community. 13 Even as late as World War II, the United States remained a net importer of copyrighted goods. 14 Since then, however, it has gradually become the 5 principal copyright exporter in the world.' The watershed change in U.S. copyright orientation began in the 1950s. In 1952, a vehicle was finally devised to break the logjam between U.S. notice, registration, deposit, manufacturing, and other formal requirements and Berne's mandate of copyright protection without formalities: this vehicle was the Universal Copyright Convention ("UCC").16 The UCC, unlike the Berne Convention, was crafted to allow copyright notice as a formal condition to copyright subsistence.
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